Key Information

Relevant Statutes and Rules

Ind. Code § 35-36-3-1 to §35-36-3-4

What proceedings can occur while the defendant is incompetent

None stated.

Number of examiners required

2 or 3, if murder or felony level 1-5. 
I.C. § 35-36-3-1(b).

1, if misdemeanor or felony level 6. 
I.C. § 35-36-3-1(c)

Qualifications of examiners

None of the experts can be an employee or contractor of a state institution.  
I.C. § 35-36-3-1(e)

If murder or felony level 1-5:psychiatrist or licensed psychologist. Must also be "competent and disinterested."  
I.C. § 35-36-3-1(b)

If misdemeanor or felony level 6: psychiatrist or licensed psychologist who "is competent and disinterested" and has expertise in determining competency. 
I.C. § 35-36-3-1(c)

What must the evaluation report contain

None stated.

Are low-level offenses excluded from restoration

"(b) If a party files a motion to dismiss, the court may dismiss the charges against the defendant without prejudice if the:
(1) defendant has been diagnosed with:
(A) dementia;
(B) Alzheimer's disease; or
(C) a traumatic brain injury;
(2) defendant's diagnosis substantially impacts the defendant's ability to understand the proceedings and assist in the preparation of the defendant's defense within the foreseeable future; and
(3) defendant is charged with a misdemeanor or a Level 6 felony."
I.C. § 35-36-3-3(b)

If the court does not grant the motion to dismiss, civil commitment proceedings shall be initiated.  I.C. §§ 35-36-3-3(c), 35-36-3-4. 

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

Inpatient or outpatient, in the "(1) location where the defendant currently resides; or (2) least restrictive setting appropriate to the needs of the defendant and the safety of the defendant and others."  I.C. § 35-36-3-1(f)

For D's already serving a custodial sentence in DOC, "at the department of correction facility agreed upon by the division of mental health and addiction or the third party contractor and the department of correction." I.C. § 35-36-3-1(f)

What is the test for restorability

"substantial probability of attaining the ability to understand the proceedings and assist in the preparation of the defendant's defense within the foreseeable future."

I.C. § 35-36-3-3(a).

What is the procedure after restoration

Court "shall enter an order directing the sheriff to return the defendant. The court shall enter such an order immediately after being sufficiently advised of the defendant's attainment of the ability to understand the proceedings and assist in the preparation of the defendant's defense. Upon the return to court of any defendant committed under section 1 of this chapter, the court shall hold the trial as if no delay or postponement had occurred."

I.C. § 35-36-3-2

What is the procedure if there is a finding of unrestorability

"the state institution (as defined in IC 12–7–2–184) or the third party contractor shall initiate regular commitment proceedings under IC 12–26."  I.C. § 35-36-3-3(c) 

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

"the state institution (as defined in IC 12–7–2–184) or the third party contractor, if the division of mental health and addiction has entered into a contract for the provision of competency restoration services by a third party, shall institute regular commitment proceedings under IC 12–26." I.C. § 35-36-3-4

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

6 mos.

I.C. § 35-36-3-3(c)